Ex Parte Xu et al

Patent Trials and Appeals Board

May 23, 2019

15007775 - (D) (P.T.A.B. May. 23, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/007,775 01/27/2016
12208 7590
Kinney & Lange, P.A.
312 South Third Street
Minneapolis, MN 55415
05/28/2019
FIRST NAMED INVENTOR
JinQuanXu
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
59859US03-Ul 73-012774 1093
EXAMINER
CHRISTENSEN, DANIELLE M
ART UNIT PAPER NUMBER
3745
NOTIFICATION DATE DELIVERY MODE
05/28/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
USPatDocket@kinney.com
amkoenck@kinney.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JIN QUAN XU and GLENN LEV ASS EUR 1
Appeal2018-006858
Application 15/007,775
Technology Center 3700
Before JENNIFER D. BAHR, MICHELLE R. OSINSKI, and
SEAN P. O'HANLON, Administrative Patent Judges.
BAHR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-25. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
1 United Technologies Corporation ("Appellant") is the Applicant as
provided in 3 7 C.F .R. § 1.46 and is identified as the real party in interest.
Appeal Br. 2.
Appeal2018-006858
Application 15/007,775
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A component for a gas turbine engine, the component
compnsmg:
a gas path wall having a first surface and a second
surface; and
a cooling hole extending through the gas path wall from
the first surface to the second surface, the cooling hole
comprising an inlet at the first surface, an outlet at the second
surface, a transition defined between the inlet and the outlet, an
inlet portion extending from the inlet to the transition, and an
outlet portion extending from the transition to the outlet;
wherein the inlet portion converges in a first direction
from the inlet to the transition and diverges in a second
direction from the inlet to the transition; and
wherein the outlet portion diverges in both the first and
second directions from the transition to the outlet.
REJECTI0NS2
I. Claims 1-5, 7-9, 12-14, and 21-23 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Weigand
(US 6,267,552 Bl, iss. July 31, 2001), Johns
2 We note that the Final Office Action (dated June 20, 2017) includes a
rejection of clairns 1, 2, 5~ 7-16, 18-21, and 23-25 on the ground of
obviousness-type double patenting over claims 1, 2, 4, and 6---21 of U.S.
Patent No. 9,279,330. See Final Act 19----23. However, Appel.lant
subsequently filed a terminal disclaimer, which was approved on July 31,
2017, rendering the rejection moot. Notably, the Examiner's Answer
reproduces all rejections from the Final Action, except for the double
patenting rejection, thereby suggesting that the Examiner is not maintaining
the double patenting rejection. See Ans. 2-20. As such, the double
patenting rejection is not before us for review.
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Application 15/007,775
(US 2010/0008759 Al, pub. Jan. 14, 2010), and Lock
(US 6,241,468 Bl, iss. June 5, 2001).
II. Claim 6 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Weigand, Johns, Lock, and Stroud
(US 4,992,025, iss. Feb. 12, 1991).
III. Claims 10, 11, and 15 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Weigand, Johns, Lock, and Liang
(US 7,997,868 Bl, iss. Aug. 16, 2011).
IV. Claims 16-18 and 20 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Weigand and Johns.
V. Claims 19, 24, and 25 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Weigand, Johns, and Liang.
DISCUSSION
Rejection I
Claims 1-5, 7-9, and 12-14
The Examiner finds that Weigand discloses a gas turbine engine
component including, in relevant part, a
cooling hole (20') comprising an inlet (23') at the first surface,
an outlet (24') at the second surface (53'), and a transition
defined between the inlet (23') and the outlet (24'), an inlet
portion extending from the inlet (23') to the transition, and an
outlet portion extending from the transition to the outlet (24');
wherein the inlet portion diverges in a second direction (Fig. 5)
from the inlet to the transition; and wherein the outlet portion
diverges in both the first and second directions (Fig. 4, 5) from
the transition to the outlet.
Final Act. 4-5. The Examiner finds that "Weigand fails to disclose that the
inlet portion converges in a first direction from the inlet to the transition."
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Application 15/007,775
Id. at 5. However, the Examiner finds that "Johns (Fig. 2a) discloses a
cooling hole with a converging portion (208) from the inlet to a transition
section and a diverging portion (214) from the transition to the outlet." Id.
The Examiner explains that Johns increases film cooling efficiency by the
converging portion reducing turbulence and normalizing cooling gas flow,
and the diverging portion slowing cooling gas velocity to match the hot gas
path. Id. ( citing Johns ,i,i 29, 31 ). The Examiner determines that it would
have been obvious to modify Weigand' s component to have "a converging
and a diverging portion of the cooling hole, as taught by Johns, in order to
improve the efficiency of the film cooling." Id. at 5-6.
The Examiner also finds that "Lock (Fig[s]. 3-5, abstract) teaches a
cooling hole that has two opposite sides which diverge and the other two
opposite sides converge, so that the cooling hole overall decreases in cross
sectional area." Id. at 6. The Examiner explains that Lock's "hole helps to
spread the cooling fluid in one direction in addition to accelerating the
cooling hole." Id. The Examiner determines that it would have been
obvious "to modify Weigand's component by forming the converging
portion so that one set of walls diverges while the other set converges, as
taught by Lock, in order to produce the predictable result of spreading the
area over which the cooling fluid flows while also accelerating it." Id.
Appellant argues that Lock teaches away from the Examiner's
proposed modification. See Appeal Br. 4-7. Appellant asserts that Lock's
cooling passage converges and reduces cross-sectional area over its entire
length to accelerate air flow, which is contrary to conventional cooling
passage designs that diverge and increase cross-sectional area to decelerate
flow. Id. at 6 (citing Lock, col. 6, 11. 38-41; col. 7, 11. 10-23). Appellant
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Application 15/007,775
asserts that Weigand and Johns disclose passages that diverge with
increasing cross-sectional area. Id. According to Appellant,
[b]ecause Lock's teachings apply to an entirely
convergent cooling passage and Lock expressly discourages
cooling passages with divergent and increasing cross-sections,
Lock explicitly teaches away from combining the
convergent/divergent walls of the Lock cooling passage with
either the entirely divergent cooling passage disclosed by
Weigand and [sic] the convergent and divergent portions of
cooling passage 200 disclosed by Johns.
Id. at 7. We are not persuaded by this argument.
A reference teaches away from a claimed invention or a proposed
modification if "a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant." In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (quoting In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)). Prior art does not teach away
from claimed subject matter merely by disclosing a different solution to a
similar problem unless the prior art also criticizes, discredits, or otherwise
discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004).
Here, Appellant does not point to, nor do we find, any disclosure in
Lock criticizing, discrediting, or otherwise discouraging the Examiner's
proposed rnodification of \Veigand's cooling hole. As discussed above, the
Examiner proposes modifying Weigand's diverging cooling hole to have an
inlet portion with decreasing cross-sectional area and an outlet pmiion with
increasing cross-sectional area, as taught by Johns, with the inlet portion
decreasing cross sectional-area by converging in a first direction and
diverging in a second direction, as taught by Lock. In other words, Lock
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Application 15/007,775
simply discloses a particular structure of a cooling hole (passage 57) that
decreases cross-sectional area by converging in a first direction and
diverging in a second direction. See Lock, Abstract, Figs. 4-5. The fact that
Lock's cooling passage 57 decreases cross-sectional area over its entire
length does not constitute a teaching away from modifying the converging
portion taught by Johns.
Appellant argues that, "[i]f Weigand['s] cooling hole 20 is modified
to include converging portion 208 disclosed by Johns and converging/
diverging walls disclosed by Lock, cooling air passing through the inlet of
the Weigand cooling hole will accelerate due to the overall reduction in
cross-sectional area of the cooling hole." Reply Br. 3. According to
Appellant, "the reductions in cross-sectional area effectively reduce diameter
d2 relative to d 1 contrary to the teachings of Weigand." Id. This argument
is unconvincing because it is not responsive to the rejection set forth by the
Examiner. Appellant is correct that Weigand discloses an arrangement of
cooling holes with diameter dl of upstream cooling holes 10 being smaller
than diameter d2 of downstream cooling holes 20. Weigand, Abstract.
However, the Examiner's rejection does not propose reducing diameter d2 of
Weigand' s cooling hole 20. See Final Act. 4-6. Instead, as discussed
above, the Examiner proposes modifying Weigand's cooling hole 20, based
on the teaching of Johns and Lock, to include an inlet portion that converges
in a first direction and diverges in a second direction, and an outlet portion
that diverges in both first and second directions. See id. Appellant does not
proffer any evidence that modifying Weigand according to the teachings of
Johns and Lock, as the Examiner proposes, would require reducing diameter
d2 of Weigand's downstream cooling hole 20 such that it is no longer larger
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than diameter dl of upstream cooling holes 10. In this regard, Appellant's
assertion amounts to nothing more than attorney argument unsupported by
evidence and, thus, is entitled to little, if any, weight. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974) (An attorney's arguments in a brief cannot take the place
of evidence.).
For the above reasons, Appellant does not apprise us of error in the
Examiner's determination that the subject matter of claim 1 would have been
obvious. Accordingly, we sustain the rejection of claim 1, and of claims 2-
5, 7-9, and 12-14, for which Appellant relies on the same argument (see
Appeal Br. 7), as unpatentable over Weigand, Johns, and Lock.
Claims 21-23
In contesting the rejection of claims 21-23, Appellant relies on the
arguments presented for independent claims 16 and 20, subject to Rejection
IV. See Appeal Br. 10. For the reasons discussed below, Appellant's
argument fails to apprise us of error in the rejection of claims 16 and 20,
and, likewise, fails to apprise us of error in the rejection of claims 21-23.
Accordingly, we sustain the rejection of claims 21-23 as unpatentable over
Weigand, Johns, and Lock.
Rejection II
In rejecting claim 6, which depends from claim 1, the Examiner finds
that "Stroud (Fig. 3a, 3b) teaches a cooling hole that converges and diverges
in all directions." Final Act. 11. The Examiner explains that"[ o ]ne having
ordinary skill in the art would recognize that[,] in combination with the
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Application 15/007,775
teachings of Lock, ... a converging portion of a cooling hole can be formed
in many ways, including having the cooling hole converge in the transverse
direction, while diverging in the longitudinal direction." Id. The Examiner
also explains that "this would allow for the hole to take up less space in the
transverse direction and allow for an increase in density of cooling holes
along the surface of the airfoil." Id. The Examiner determines that it would
have been obvious to modify Weigand "by forming the inlet portion so that
the cooling hole converges in the transverse direction and diverges in the
longitudinal direction, as taught by Stroud and Lock, in order to produce the
predictable result of reducing the space the cooling holes take up in the
transverse direction." Id. According to the Examiner,
[s]ince there are only a finite number of ways that the cooling
hole can converge with the expected result of reducing the cross
sectional area of the cooling hole, it would have been obvious
to one having ordinary skill in the art to try the known,
predictable, potential solutions (MPEP 2144 I E), which would
have included having the first direction and second direction
change as claimed.
Ans. 18.
Appellant argues that the combination of Weigand, Johns, Lock, and
Stroud does not render obvious an arrangement in which "the first direction
is a transverse direction with respect to gas flow along the second surface
and the second direction is a longitudinal direction with respect to the gas
flow along the second surface," as recited in claim 6. See Appeal Br. 8. In
particular, Appellant asserts that "converging sections of cooling holes can
vary in dimension, cross-section (whether formed by a continuous curve of
discrete sides), and length, among other parameters. Using these
parameters, portions of cooling holes can converge in many ways rather than
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Application 15/007,775
a finite number of ways." Reply Br. 4. We agree that a sustainable case of
obviousness has not been established.
Here, the Examiner has not sufficiently articulated a rational
evidentiary underpinning to explain why, given the teachings of Stroud, one
of ordinary skill in the art would have been prompted to modify the cooling
hole of the Weigand/Johns/Lock combination such that the inlet portion
converges in the transverse direction and diverges in the longitudinal
direction, as required claim 6. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006) (requiring "some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness") (cited with
approval in KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). Even
if one of ordinary skill in the art would recognize "that a converging portion
of a cooling hole can be formed in many ways" (Final Act 11 ), the
possibility that a cooling hole can he formed in the manner recited in the
claim does not provide a reason for doing so. In other words, the Examiner
does not adequately explain ivhy one of ordinary skill in the art would
consider modifying the cooling hole such that the inlet portion converges in
the transverse direction and diverges in the longitudinal direction, as
claimed. The Examiner posits that the proposed modification "would allow
for the hole to take up less space in the transverse direction and allow for an
increase in density of cooling holes" (id.), but the Examiner does not set
forth any evidence or persuasive technical explanation to support this
speculative position. Such speculation is insufficient to support an
obviousness conclusion. See In re Warner, 379 F.2d 1011, 1017 (CCPA
1967) (Rejections based on obviousness must rest on a factual basis; in
making such a rejection, the Examiner has the initial burden of supplying the
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requisite factual basis and may not, because of doubts that the invention is
patentable, resort to speculation, unfounded assumptions, or hindsight
reconstruction to supply deficiencies in the factual basis.).
Moreover, the Examiner's apparent reliance on Stroud and Lock as
providing evidence that the proposed modification was obvious to try (see
Ans. 18) is unavailing to support a conclusion of obviousness. The "obvious
to try" rationale of KSR is based on choosing from "a finite number of
identified, predictable solutions,""[ w ]hen there is a design need or market
pressure to solve a problem." KS'R, 550 U.S. at 421. Here, the Examiner
does not point to any evidence of record that a finite number of identified,
predictable solutions exist to solve a problem evidenced by design need or
market pressure.
Accordingly, based on the record before us, the Examiner has not met
the burden of establishing a proper case that claim 6 is unpatentable based
on the cited references. Accordingly, we do not sustain the rejection of
claim 6 as unpatentable over Weigand, Johns, Lock, and Stroud.
Rejection III
In contesting the rejection of dependent claims 10, 11, and 15,
Appellant relies on the argument presented for independent claims 1 and 13.
See Appeal Br. 9. For the reasons discussed above, Appellant's argument
fails to apprise us of error in the rejection of claims 1 and 13, and, likewise,
fails to apprise us of error in the rejection of claims 10, 11, and 15.
Accordingly, we sustain the rejection of claims 10, 11, and 15 as
unpatentable over Weigand, Johns, Lock, and Liang.
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Rejection IV
In contesting this rejection, Appellant presents arguments for
independent claim 16 (see id. at 9-10), and relies on the same arguments for
independent claim 20 and dependent claims 17 and 18 (see id. at 10). We
select claim 16 as representative, and claims 17, 18, and 20 stand or fall with
claim 16.
The Examiner finds that Weigand discloses
a gas path wall ( 50') having a first surface and a second surface
(53'); a cooling hole (20') extending through the gas path wall
(50'), the cooling hole (20') having an inlet portion with an inlet
(23') in the first surface an outlet portion with an outlet (24') in
the second surface (53'), and a transition ... defined between
the inlet portion and the outlet portion[;] a first cooling hole
surface extending along the cooling hole (20'), wherein the first
cooling hole surface is substantially straight from the inlet (23')
through the transition to the outlet (24'); and a second cooling
hole surface extending along the cooling hole opposite the first
cooling hole surface, wherein the second cooling surface
diverges away from the first cooling hole surface from the
transition to the outlet.
Final Act. 13-14. The Examiner finds that Weigand "fails to disclose that
the second cooling hole surface converges toward the first cooling hole
surface from the inlet to the transition." Id. at 14. However, the Examiner
finds that "Johns (Fig. 2a) discloses a cooling hole with a converging portion
(208) from the inlet to a transition section and a diverging portion (214)
from the transition to the outlet," and determines that it would have been
obvious to modify Weigand to include this feature "in order to improve the
efficiency of the film cooling." Id.
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Application 15/007,775
Appellant argues that Johns' s
converging portion 208 receives air from feed aperture 202
and/or expansion chamber 204, and thus, does not extend from
a first surface of a gas path wall. (Johns, ,i [0029].) Instead,
John[s] provides feed aperture 202, a passage of constant
diameter that feeds expansion chamber 204 before entering
converging portion 208.
Appeal Br. 10. This argument against Johns is unpersuasive because it
attacks the reference individually, and is not responsive to the rejection
presented, which is based on the combined teachings of \Veigand and Johns.
"Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references." In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(citing In re Keller, 642 F.2d 413, 425 (CCPA 1981)).
Here, the Examiner's rejection does not rely on Johns for teaching a
first surface of a gas path wall. Rather, as discussed above, the Examiner
relies on Weigand for disclosing a first surface of gas path wall (50') with an
inlet for a cooling hole having a substantially straight first cooling hole
surface. Final Act. 13-14. The Examiner relies on Johns for teaching a
cooling hole having a converging portion and a diverging portion. Id. at 14.
The Examiner explains that Johns's converging portion reduces turbulence
and normalizes cooling gas flow, and the diverging portion slows cooling
gas velocity to match the hot gas path, which results in increased film
cooling efficiency. Id. (citing Johns ,i,i 29, 31). The Examiner concludes
that modifying Weigand's cooling hole to include Johns's converging and
diverging portions would have been obvious in order to improve film
cooling efficiency. Id. In this regard, Appellant does not specifically
address the Examiner's articulated reasoning for the conclusion of
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Application 15/007,775
obviousness. The Examiner articulates adequate reasoning based on rational
underpinnings for the proposed modification of Weigand, and Appellant
does not offer any factual evidence or persuasive technical rationale to refute
the Examiner's reasoning or explain why it would be deficient.
Additionally, the Examiner explains in the Answer that "the surface
identified in ... [annotated Figure 2a] of Johns can also be broadly
interpreted as the first surface, since the claims fail to provide further detail
on what structure comprises the first surface of the gas path wall." Ans. 19
(including annotated Figure 2a of Johns). In this regard, Appellant does not
persuasively refute the Examiner's alternative position.
Appellant also argues that "modifying downstream hole 20 of
[Weigand] with the converging [section] disclosed by Johns, reduces the
diameter, d2, of downstream hole 20 relative to the upstream hole diameter,
dl, in a manner that contradicts Weigand's teachings of having the
downstream hole diameter larger than the upstream hole diameter." Reply
Br. 3-4. This assertion essentially repeats the argument discussed above
with respect to the rejection of claim 1 and is unpersuasive with respect to
claim 16 for the same reasons.
Thus, Appellant does not apprise us of error in the Examiner's
determination that the subject matter of claim 16 would have been obvious.
Accordingly, we sustain the rejection of claim 16, and of claims 17, 18, and
20 falling therewith, as unpatentable over Weigand and Johns.
Rejection V
In contesting the rejection of dependent claims 19, 24, and 2 5,
Appellant relies on the argument presented for base claim 16. See Appeal
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Br. 11. For the reasons discussed above, Appellant's argument fails to
apprise us of error in the rejection of claim 16, and, likewise, fails to apprise
us of error in the rejection of claims 19, 24, and 25 as unpatentable over
Weigand, Johns, and Liang, which we sustain.
DECISION
The Examiner's decision rejecting claims 1-5, 7-9, 12-14, and 21-23
under 35 U.S.C. § 103(a) as unpatentable over Weigand, Johns, and Lock is
AFFIRMED.
The Examiner's decision rejecting claim 6 under 35 U.S.C. § 103(a)
as unpatentable over Weigand, Johns, Lock, and Stroud is REVERSED.
The Examiner's decision rejecting claims 10, 11, and 15 under
35 U.S.C. § 103(a) as unpatentable over Weigand, Johns, Lock, and Liang is
AFFIRMED.
The Examiner's decision rejecting claims 16-18 and 20 under
35 U.S.C. § 103(a) as unpatentable over Weigand and Johns is AFFIRMED.
The Examiner's decision rejecting claims 19, 24, and 25 under
35 U.S.C. § 103(a) as unpatentable over Weigand, Johns, and Liang is
AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED-IN-PART
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